C.S. CHANGAPPA, SON OF C.B. SOMAIAH AND OTHERS Vs. THE STATE OF KARNATAKA, REPRESENTED BY ITS CHIEF SECRETARY, DEPARTMENT OF HOUSING AND URBAN DEPARTMENT, M.S. BUILDINGS, DR. B.R. AMBEDKAR VEEDHI, BANGALORE-560001 AND MYSORE URBAN DEVELOPMENT AU

JUDGEMENT

(1.) THE petitioners claim that they are residents of Nachanahalli of Sriramapura Group Panchayath, Kasaba Hobli, Mysore and are allottees of sites formed by the said Panchayath. It is claimed that Survey No. 50 of Nachanahalli, measuring 1 acre 4 guntas, including 10 guntas of Kharab, which had earlier belonged to one Kullabhovi, was conferred on the Panchayath under Boodhanayagna. The Special Deputy Commissioner, Mysore, by order dated 20.2.1960, granted permission to the Panchayath to grant sites to the villagers. The record of rights for the years 1981 to 1986 and 2006 -2007, showed that the lands were conferred under the 'Boodhana Yagna'. It is claimed that a sketch was prepared in respect of Survey No. 50. Pursuant to the order of the Special Deputy Commissioner, the Panchayath had passed a resolution dated 3.2.1975, to distribute the sites formed in Survey Nos. 50 and 167 of Nachanahalli village. Accordingly, the petitioners were allotted sites formed in Survey No. 50 and were issued Hakku patras. The petitioners were in possession and enjoyment of the sites. In the meanwhile, as there was interference by third -parties, the petitioners filed suits for injunction restraining such interference before the trial court, which were decreed by a judgment and decree dated 24.11.2001. Appeals were filed against the said judgment and decree and the same were dismissed, confirming the judgment and decree passed by the trial court holding that petitioners nos. 1 and 2 were owners in possession and enjoyment of site nos. 6 and 5, respectively.

(2.) WHEN things stood thus, the second respondent -Mysore Urban Development Authority (Hereinafter referred to as the 'MUDA', for brevity) issued a preliminary notification under Section 17(1) of the Karnataka Urban Development Authority Act, 1987 (Hereinafter referred to as the 'KUDA Act', for brevity), proposing to acquire 34 guntas of land in Survey No. 50 of Nachanahalli Village for formation of Nachanahalli III Stage Extension in Mysore, during January 1992, and a final notification was issued on 3.8.1998. The names of persons from whom the land was acquired was not shown either in the preliminary notification or the final notification, except mentioning as 'Bhoodhana Yagna' in the khatedar column. It is claimed that the land is sought to be acquired without issuing any notice to the concerned, which is illegal and arbitrary and an award is also said to have been passed by the second respondent by issuing notice to the Tahsildar, on the basis of the entry in the revenue records, as 'Bhoodhana Yagna'. It is in this background that the petitioners have filed these petitions, seeking to quash the preliminary and final notifications and to declare the acquisition -proceedings as being illegal and arbitrary.

(3.) ON the other hand, the learned counsel for the Respondent No. 2 would submit that the several lands of Nachanahalli were sought to be acquired for the formation of the Nachanahalli III Stage Layout. The land in Sy. No. 50 measuring 1 acre 4 guntas consisting of 34 guntas of cultivable lands and 10 guntas of kharab land, the second respondent had obtained the Record of Rights in respect of the lands in question and it was found in Column No. 9 thereof that the land was held under the Bhoodhana Yagna. As the law required the respondent to notify the persons whose names were found in the Record of Rights, and since the said respondent was not required to make any roving enquiry to find out the names of the persons, the preliminary notification had been issued indicating the khatedar as Bhoodhana Yagna, which implied that the land was donated under Bhoodhana Yagna to Shri Acharya Vinobha Bhave, to be utilized for the benefit of landless persons. Therefore, as on the date of the preliminary notification, it apparently was not granted to any person. If there was any such grant, the person's name would have been reflected in the Record of Rights. Incidentally, the preliminary notification was not only published in the official gazette, but also published in two local dailies having wide circulation in the city of Mysore. Therefore, any person interested in the land was enabled to file objections to the acquisition proceedings. The petitioners claiming to be living in the houses constructed on the lands in question, did not file any objections. However, one Hanumamma had filed a writ petition in W.P. No. 2148/1999 before this Court claiming that the land in Sy. No. 50 originally belonged to one Kulla Bhovi and she was claiming as a legal representative of the said Kulla Bhovi. Record of Rights were produced in respect of the land, which however did not indicate the name of Kulla Bhovi either in Column No. 9 or Column No. 12. It was the case of Hanumamma that the entries in the Record of Rights were incorrect and the same had been challenged before the Assistant Commissioner and their appeal had been rejected by an order dated 21.09.1992. Her further contention was that she was not notified of the acquisition proceedings and hence, the said petition was filed. That writ petition was dismissed by an order dated 26.02.1999 by a learned Single Judge of this Court holding that the petitioners had no right to challenge the acquisition proceedings. Aggrieved by it, an appeal in W.A. No. 3616/1999 was filed before a Division Bench, which appeal was also dismissed by a judgment dated 12.01.2000. After the disposal of the writ appeal, possession of the lands were said to have been taken on 5.12.2000, which was duly notified in the official gazette under Section 16(2) of the Land Acquisition Act, 1894 (hereinafter referred to as the 'LA Act' for brevity). The Division Bench had incidentally reserved a right, if any, of the appellant, which could be pursued in law and that such a right was not taken away by the disposal of the writ proceedings. No further proceedings were initiated. It is only in the year 2007 that a legal notice was issued by one Ganesh, S/o. late Ramaiah claiming under Kulla Bhovi, the original owner of the land and asserting that it was on 5.1.2004 that he had learnt of the land having been acquired and that it was without notice to him. This was totally contrary to the claim earlier made by Hanumamma who, along with Chikkamma and Dasamma had claimed that they were the legal representatives of Kulla Bhovi. Though there was no declaration by any Civil Court as to the right of such person to claim as a legal representative of Kulla Bhovi, proceedings are said to have been initiated before the Assistant Commissioner for rectification of the entries in the Record of Rights, which had been disposed of and the matter was remitted to the Tahsildar for an enquiry. Against the said order, a revision petition is said to have been filed before the Deputy Commissioner, Mysore District, who had set aside the order of the Assistant Commissioner, directing the Assistant Commissioner to pass fresh orders by an order dated 21.09.1992 and a fresh order appears to have been passed on 30.07.2006 holding that in view of the acquisition of the land, it was open for the legal representatives of Kulla Bhovi to claim compensation. In the course of these proceedings, there were spot inspections conducted by the Tahsildar and the Assistant Commissioner and it was placed on record that there were no structures to be found in the land in Sy. No. 50 and when development works were said to have been undertaken by Respondent No. 2, one Chikkamma claiming to be the legal representative of Kulla Bhovi had got issued a legal notice to state that this Court in a writ petition in W.P. No. 3696/1999, had held that the name of the original owner was not shown in the Record of Rights by mistake and the entry of the name Bhoodhana Yagna in the Record of Rights is a mistake and therefore, they had approached the revenue authorities for correction. This was an incorrect statement made by the said Chikkamma and no such order was in existence which was denied by Respondent No. 2. There was a further claim made by the first petitioner in his legal notice dated 4.2.2009 claiming that he had purchased site No. 6 from the Srirampura Group Panchayath on 12.02.2005 and that he had filed a Civil suit in O.S. No. 631/1999 on the file of the III Additional Civil Judge (Junior Division), Mysore, against Hanumamma, Dasamma and Chikkamma, restraining them from disturbing his possession of the suit property, which is said to have been decreed. The defendants therein had filed an appeal in R.A. Nos. 51, 53 and 57/2002, which was in turn dismissed by a judgment dated 1.09.2009. Hence, the first petitioner Changappa had claimed title and had issued notice that he would be constrained to seek protection against disturbance as against his possession by the Karnataka Slum Clearance Board, to which a reply had been sent, holding that the lands in question had been acquired and no suit had been filed by Changappa.